Category Archives: Policy

The Environmental Protection Agency (EPA) will finalize rules establishing the nation’s first limits on carbon pollution from the power sector – the largest source of greenhouse gas emissions in the United States – by mid-summer of this year.

This timetable will allow EPA to carefully consider and respond to the approximately four million public comments it has received on almost every aspect of these vital and common-sense standards, which were proposed in draft form last summer as the Clean Power Plan.

Unfortunately, several states and a major coal producer have attempted to short-circuit this process by filing highly unusual legal challenges to these proposed standards. The challenges were filed in the U.S. Court of Appeals for the D.C. Circuit in two related cases, Murray Energy Corporation v. EPA (Nos. 14-1112 & 14-1151) and West Virginia v. EPA (No. 14-1146).

These lawsuits are untimely, legally unfounded, and seek to undermine a critically important democratic process.

One of the bedrock principles of administrative law is that standards developed by federal agencies go through a procedure whereby draft standards are published, the public has an opportunity to comment, and agencies review and respond to those comments in the final standards — all before legal challenges to those rules can be filed.

This process ensures that the public has a meaningful chance to weigh in on agency actions. It also helps agencies themselves ensure their decisions are well-informed and firmly grounded in law and science. In fact, proposed rules often undergo substantial changes as a result of the comment process. The rule against judicial review of proposed rules respects the importance of this process, and keeps courts and agencies from wasting valuable time and judicial resources on litigation over rules that may change as a result of public comments.

Disregarding this basic principle, the petitioners in these two cases argue that the proposed Clean Power Plan is unlawful – and demand that the court set the proposed rule aside before EPA has even finished its review of comments, much less issued a final rule.

But this fundamental jurisdictional obstacle is only the start of the problems with the petitioners’ case, which rests on an implausible reading of the Clean Air Act that would undermine the very health protections Congress sought to establish there.

EPA’s Clean Power Plan is authorized by section 111(d) of the Act, which requires EPA to administer a process by which states submit plans to regulate certain pollutants from existing sources of harmful air pollution. When enacted in 1970, section 111(d) clearly required that states establish such standards for any pollutant except those regulated under section 108 of the Clean Air Act (which addresses national air quality standards) and section 112 (which applies to acutely toxic “hazardous air pollutants” or HAPs).

For more than forty years, section 111(d) has been understood to serve a vital “gap-filling” role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution from existing sources, where that pollution is not adequately regulated under other provisions of the Clean Air Act.

Ignoring that sensible and long-standing framework, the petitioners in these cases have advanced an unusual theory — that EPA is barred from regulating carbon pollution at all under section 111(d) of the Clean Air Act because the Agency is already regulating different pollutants from the power sector (mercury and other air toxics) under section 112 of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either HAPs like mercury (under section 112) or non-HAPs like carbon pollution (under section 111(d)) for any given source, but not both.

The petitioners’ interpretation not only defies logic and the basic structure of our nation’s clean air laws, it also stands in sharp contrast to arguments that industry itself made to the Supreme Court in the case of American Electric Power v. Connecticut (2011).

There, the Court specifically found that section 111(d) “speaks directly” to the problem of carbon pollution from the power sector, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

In oral argument in American Electric Power, attorneys for some of the country’s largest power companies told the Court in no uncertain terms that EPA does have authority to regulate carbon dioxide under section 111(d):

“We believe that the EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.”

Four years later, petitioners now claim that EPA is required to adopt their interpretation as a result of changes made to the text of section 111(d) as part of the 1990 Clean Air Act Amendments.

In 1990, in an effort to update a cross-reference to the hazardous air pollution program under section 112, the Senate and House each passed technical amendments making minor changes to the same language in section 111(d). Congress then enacted, and the President signed into law, both amendments to the statute.

Even petitioners do not contest that the language of the Senate Amendment clearly preserves EPA’s long-standing authority to regulate carbon pollution under section 111(d) (as well as other pollutants not regulated under sections 108 or 112). However, petitioners have seized on the House amendment, which amended section 111(d) to require that EPA regulate “any pollutant” which is not “emitted from a source category which is regulated under [section 112].” This language, they claim, prevents EPA from regulating carbon dioxide from existing power plants —because power plants are subject to emission standards for mercury, acid gases, and other HAPs under section 112.

This argument finds no support in the Act’s text, structure, or legislative history.

First, the petitioners’ theory would radically change the structure of the Clean Air Act in a way that Congress could never have intended. Under the Petitioners’ theory, section 111(d) would not apply to any pollutant, no matter how harmful, that is emitted by the dozens of industrial source types regulated under section 112 of the Clean Air Act. Significant categories of harmful pollution, not limited to carbon dioxide, would be placed beyond the scope of regulation under the Clean Air Act. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Second, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111 – a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

Third, the petitioners’ theory is completely at odds with the purpose of the 1990 Amendments, which strengthened the Act in numerous ways in order to ensure that harmful air pollution was being effectively addressed.

Petitioners also urge the court to disregard what Congress actually did by ignoring the Senate amendment, which even petitioners agree clearly preserves EPA’s authority to regulate carbon pollution under section 111(d). But the Senate amendment was passed by both houses of Congress and signed into law by the President. As the law of the land, the Senate Amendment cannot be cast aside.

Instead, the petitioners emphasize a strained interpretation of the House Amendment that is not only unreasonable on its face and inconsistent with the Supreme Court’s opinion in AEP, as described above, but is contrary to all of the actions taken by every administration in the twenty-five years since the 1990 amendments were enacted.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments. This long record shows that the House amendment is most reasonably interpreted to preserve the historic “gap-filling” role of section 111(d).

It is regrettable that petitioners have resorted to premature litigation rather than allow the administrative process to run its course.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants. Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our children's health from all harmful air pollution.

This week and next, the U.S. Environmental Protection Agency (EPA) is holding hearings across the country on the proposed updates to our national smog (ground-level ozone) standards from their current level of 75 parts per billion (ppb) to 65 to 70 ppb. Exacerbated by the combustion of fossil-fuel power plants and car exhaust, ground-level ozone is the single most widespread air pollutant in the United States and is linked to severe respiratory health outcomes. Ozone poses a great threat to public health across America.

What is the issue?

Smog is a dangerous air pollutant that is linked to premature deaths, asthma attacks, and other serious heart and lung diseases. It is estimated that more than 140 million people live in areas with unhealthy levels of smog pollution. The very air we breathe is putting us at risk for adverse health outcomes such as premature deaths, increased asthma attacks and other severe respiratory illnesses, as well as increased hospital visits.

Does the proposal go far enough?

While EDF supports EPA’s proposal to strengthen these critical health protections, we believe that going even further, to 60 ppb, would provide the strongest protections for Americans and would be in line with what leading medical associations like the American Lung Association recommend.

Can this be achieved?

America has decades of experience innovating and cost-effectively cleaning up the air – and we can do so again to reduce smog pollution. From the Tier 3 tailpipe standards to the proposed Clean Power Plan, which would set the first-ever national limits on carbon pollution from existing power plants, the air across the country is becoming cleaner, showing us that we can have healthy air and a strong economy. In some American cities, we estimate that ozone is already declining each year thanks to important air regulations such as the Cross State Air Pollution Rule, but there is still work to do.

What can you do?

Voice your support for strong clean air standards! A strong smog standard will help ensure Americans know whether the air they are breathing is safe, and will drive much-needed pollution reductions. Our communities, our families, and our children are counting on EPA’s leadership in setting a strong ground-level ozone standard.

Would you believe there's a state that cut pollution and cleaned up its air, while creating jobs and sustaining economic growth?

And where economic incentives, rather than costly regulations, are stimulating innovation and investment?

California passed the earliest, most comprehensive law to set a cap on carbon pollution, along with numerous other complementary policies to help the state transition to a low-carbon, clean-energy economy.

The results are now coming in and the present – and future – looks bright.

Two years after it was fully implemented, California's cap-and-trade program is thriving, a new report [PDF] from Environmental Defense Fund shows.

The program is now ramping up as the state economy is growing, paving the way for California to pass even stronger climate policies. Perhaps most important, it's laying the groundwork for other states and nations to move forward with similar steps.

The four top findings from our report:

1. California’s cap is driving down greenhouse gas pollution while allowing the economy to grow.

The state has been able to grow its economy significantly while keeping greenhouse gas pollution from rising, too.

Emissions capped under the program decreased by almost 4 percent during the first year of the program. What’s more, California’s ambitious climate change and clean energy policies have created a thriving economy that is growing faster than the overall national economy and attracting considerable amounts of investment.

Since 2006, California has received more clean-tech venture capital investment than all other states combined and leads the rest of the nation in clean-tech patent registration.

2. California has built a robust carbon market that is getting progressively stronger.

Companies can purchase allowances through quarterly auctions or on the secondary market. The results of nine successful auctions to date reflect a healthy level of interest for carbon allowances and confidence among companies in the long-term health of the program.

In addition, California successfully linked its program with Quebec’s over the past year, proving that motivated governments can work effectively together and do more in partnership than they can alone.

This outcome may inspire similar linkages around the world.

3. Companies are taking the program seriously.

Every single company regulated by California’s carbon cap acquired enough allowances to meet their first compliance deadline.

This proves, in a strong way, that companies are incorporating the price on carbon into their business models and actively planning how they will comply with the regulation.

4. Success begets confidence and commitment in climate policies.

During the 2013-2014 California legislative session, several bills designed to strengthen the cap-and-trade program passed, while measures that would have harmed or derailed the program all failed to move forward.

Gov. Jerry Brown and other state government leaders have called for more ambitious goals to be set beyond the current 2020 goal.

California’s success creates momentum for national and global climate action, offering lessons and insights to other states and nations all over the world that are weighing similar actions to help avert the worst effects of climate change.

But the results from California’s program show that with a long-term vision and strong leadership – along with effective collaboration between government, businesses and communities, stakeholders – it’s one of the strongest answers we’ve got.

The Clean Power Plan will set the nation’s first-ever carbon pollution standards for power plants. It’s one of the biggest steps we’ve ever taken to address the pollution that harms our climate.

EDF strongly supports the Clean Power Plan, of course, but we’re certainly not alone.

These urgently needed standards have already won broad support from the faith community, moms, health and medical associations, businesses, power companies, Latino groups, states, and others – as well as from EDF and other environmental groups.

And more than three and a half million Americanssent comments in support of the Clean Power Plan to the Environmental Protection Agency (EPA).

Here are just a few quotes highlighting the Clean Power Plan’s support among diverse groups, and demonstrating the broad support about the need to protect our climate:

Climate change poses grave threats to public health. To protect our communities and the public, the United States must significantly reduce carbon pollution from the largest source, which are existing power plants. Our organizations support EPA’s overall approach with the Clean Power Plan, but urge EPA to strengthen the final plan to provide greater protection to public health.

Comment Letter from medical and public health associations: American Academy of Pediatrics, American Heart Association, American Lung Association, American Public Health Association, American Thoracic Society, Center for Climate Change and Health, Health Care Climate Council, Health Care Without Harm, Public Health Institute, and Trust for America’s Health

We applaud EPA for proposing a rule that will place the United States on a path to achieving meaningful reductions in carbon pollution, although we recognize that greater overall reductions will be necessary to meet the challenge of climate change. Our states are already demonstrating that significant, cost-effective reductions can be achieved from the power sector through the “system” EPA identifies as the basis for its proposed emission guideline. We therefore support EPA’s general approach to setting the emission guideline.

We support the proposed rule’s overall objective of achieving meaningful emission reductions from existing power plants and encouraging investment in a clean energy future, and these technical comments are offered for the purpose of constructively supporting that objective. We agree with EPA that meaningful emission reductions can be achieved from the electric sector while maintaining electric system reliability.

We strongly support EPA in moving forward with the proposed Clean Power Plan in the strongest form possible. We know that communities of color and low-income communities, including the Latino community, are frequently among those most negatively impacted by carbon pollution. Whether it is exposure to health damaging copollutants associated with carbon emissions or the present and worsening effects of climate change, these impacts are both direct and indirect and they threaten the social and economic order of overexposed and overburdened communities.

As businesses concerned about the immediate and long-term implications of climate change, we, the undersigned, strongly support the principles behind the draft Carbon Pollution Standard for existing power plants. The Environmental Protection Agency’s (EPA) proposed Carbon Pollution Standard for existing power plants represents a critical step in moving our country towards a clean energy economy…Our support is firmly grounded in economic reality. We know that tackling climate change is one of America’s greatest economic opportunities of the 21st century and we applaud the EPA for taking steps to help the country seize that opportunity.

And, while delivering more than 10,000 comments in support of the Clean Power Plan, The Reverend Sally Bingham, founder and president of Interfaith Power and Light said:

[W]e urge the EPA to move forward with the proposed standards for existing power plants so that we can reduce carbon pollution as quickly as possible to address climate change, protect human health, and care for all of Creation.

It has been a great privilege to work on the Clean Power Plan at EDF during the past year. That’s one of the things I’m reflecting on personally.

It’s true that climate change is an immense issue with far-reaching impacts. But the immensity of the challenge has united an extraordinary number of Americans, and moved a wide range of diverse groups to take action — and that is something we can all celebrate this New Year.

California state Senate President Kevin de León arrives at the conference center for the UN climate talks in Lima, Peru. Image used with permission from Senator de León.

The chattering classes of the climate policy world are abuzz with their customary post-mortems following the latest breathless two-week session of the United Nations Framework on Climate Change 20th Conference of Parties (also known simply as COP 20), held in Lima, Peru.

Consensus is forming around a “slightly better than nothing” assessment of the Lima Call for Climate Action, which was adopted in the wee hours of Sunday amidst the usual skirmishes over money, monitoring, and mandates.

Lima clarified some of the expected content of the national pledges (“Intended Nationally Determined Contributions,” INDCs in COP shorthand) to be presented by all countries next year.

Notwithstanding the softness engendered by the word “intended,” at least we aren’t firmly stuck in the “old world order” where only developed countries are taking on mitigation actions.

While nations squabbled about intentions, another story was playing out on the sidelines of the COP, showcasing real, groundbreaking and consequential progress at the subnational level – within states, provinces, and cities.

After spending the vast majority of my time in Lima with innovative and dynamic subnational leaders, I came away with an unbridled sense of optimism and renewed hope that there are pathways to climate progress, even if many of them go around rather than through the formal UN process.

California, laboratory of climate change solutions

California's delegation to the Lima climate negotiations. Image used with permission from Senator de León.

California has long been a laboratory of climate change solutions and will be expanding its cap-and-trade program to cover transportation fuels in two short weeks.

Meetings with the California contingent are always a sought-after ticket at the COPs, and California delegates are always eager to learn from and trade ideas with their counterparts around the world.

A very encouraging trend is the evolution of subnational cooperation from platitudes to concrete plans.

Partnership between California and China

I moderated a panel highlighting the collaboration between California and China, a partnership that involves a substantive, two-way exchange of ideas and expertise on issues such as emissions trading, clean vehicles, sustainable infrastructure, and technology deployment.

In less than two years, cities and provinces in China have developed pilot cap-and-trade programs that are paving the way for a future national emissions trading system in China. California has a lot to learn from the Chinese experience, and Chinese leaders studied the design of California’s system as the pilots were being developed.

Cooperation among North American states and provinces

Subnational partnerships in North America are taking off, in part because of the lack of action at the national level, particularly in the U.S. and Canada.

In Lima, the top environmental officials from California, British Columbia, Ontario, and Quebec issued a joint statement resolving to “work together towards mid-term greenhouse gas reduction goals,” a key step towards locking in long-term action and unleashing innovation in low-carbon technologies.

California Governor Jerry Brown announced his support for a 2030 GHG target at the UN Climate Summit in September, and legislation has been introduced in California that would establish a 2050 mandate and require interim targets in 2030 and 2040.

Commitments from subnational governments

While countries are submitting their INDCs, subnational governments are also putting their commitments to paper.

An important initiative called The Compact of States and Regions, launched at the UN Climate Summit by The Climate Group, will aggregate and evaluate the commitments being taken by subnational governments around the world.

States, provinces, and cities are not waiting for the UN or their national governments to act.

Meanwhile, Governor Brown’s indefatigable policy czar Ken Alex is spearheading a “subnational INDC process,” wherein subnational leaders around the world will be invited to sign an agreement, to be unveiled over the next year, committing to reducing their emissions at least 80% below 1990 levels by 2050, or to cutting their per capita emissions to below two tons.

Thankfully, states, provinces, and cities are not waiting for the UN or their national governments to act. There is a lot to be optimistic about, and subnational and subnational governments are showing leadership and forging ahead in what could be seen as a friendly competition to develop and implement the boldest and most successful climate change initiatives.

These leaders are restless, motivated, and they realize that the future of people and the planet are at stake. As my friend Glen Murray, Ontario’s Minister of the Environment, said time and again in Lima: “We’re going to do this.”

The Environmental Protection Agency last week released much-awaited, tighterstandardsfor smog pollution, common-sense protections that will save lives and safeguard human health from one of the nation’s most ubiquitous air pollutants – ozone.

As expected, it took but a few hours before critics lashed out, while ignoring key facts behind EPA’s proposal. Here are five reasons EPA is on the right track:

1. The current standard doesn’t do enough to protect human health

About half our population, some 156 million Americans, areat risk from smog, or ground-level ozone, because of age, health conditions, or the work that they do. They include more than 25 million people with asthma, 74 million children, 40 million senior citizens, and nearly 17 million outdoor workers.

EPA’s new proposal, issued under a court-ordered deadline, is a step in the right direction – even if it doesn’t, in our view, go far enough.

Consider this: The proposed 65 to 70 ppb limit would prevent between 320,000 and 960,000 asthma attacks in children and up to 1 million lost school days. It would also prevent up to 180,000 lost work days and an estimated 750 to 4,300 premature deaths.

2. Clean air is good for the economy

By law, the issue of cost cannot be factored in when setting a health-based standard. But even if costs were considered, the conclusion remains thatclean air is good for the economy.

Since 1970, the benefits of the Clean Air Act have outweighed costs by 30 to 1, and a similar trend is expected to hold true also for the proposed smog standards.

The proposed standard, set to be finalized in October 2015, has been recommended repeatedly by EPA’s Clean Air Scientific Advisory Committee, an independent panel of leading scientists, as well as by medical and public health professionals nationwide.

In fact, EPA is also seeking comments on a health standard that would limit exposure to 60 ppb – a standard that would provide the strongest protections for Americans and be in line with what groups such as the American Lung Association recommend.

4. Smog pollution measures are nothing new

The United States has already taken steps over the past few years that help to cost-effectively reduce smog pollution and help restore healthy air.

Those protections include the Tier 3 tailpipe standards, supported by the U.S. auto industry, which will slash smog-forming pollution from new cars beginning in model year 2017. Meanwhile, EPA’s proposedClean Power Plan will reduce smog-forming pollutants from power plant smokestacks nationwide.

These standards will work in tandem to cut pollution and spur new innovation. America has shown time and time again that we can innovate and come up with solutions for industry that make new regulations affordable.

5. It’s time we catch up with other developed nations

Once a leader in environmental protection, the U.S. now lags behind other developed and developing nations in the protectiveness of air quality standards for smog.

Numerous industrialized countries have adopted ozone standards that are far more protective than the current standard in the U.S. The European Union’s limit today is 60 ppb and Canada’s is 63 ppb, for example.

Some of these countries are doing as well, or better, economically than the U.S.

For this and all other reasons mentioned here, EPA’s new smog standards will help us breathe easier.